Her Majesty the Queen v. Clarke

[Indexed as: R. v. Clarke]

Ontario Reports

Court of Appeal for Ontario,

Laskin, Goudge and Gillese JJ.A.

January 11, 2013

115 O.R. (3d) 75 | 2013 ONCA 7

Case Summary

Criminal law — Sentencing — Pre-sentence custody — Truth in Sentencing Act (limiting trial judges' discretion about amount of credit to give for pre-sentence custody) applying where accused charged after Act came into force even if offence occurring prior to Act came into force — Section 5 of Act clearly displacing presumption against retrospectivity — Truth in Sentencing Act, S.C. 2009, c. 29, s. 5.

The accused pleaded guilty to breaking and entering and firearms offences. He committed those offences before the Truth in Sentencing Act came into force, but was charged after the Act came into force. Before this Act, trial judges generally gave accused 2:1 credit for each day of pre-sentence custody. The legislation created a presumption that the accused are entitled to 1:1 credit for pre-sentence custody but it also permits trial judges to allow up to 1.5 days' credit "if circumstances justify it". The trial judge found that the Act applied and gave the accused the maximum allowable credit of 1.5:1 for pre-sentence custody. The accused appealed, relying on the principle that legislation affecting substantive rights should be presumed not to apply retrospectively.

Held, the appeal should be dismissed.

The presumption against retrospectivity can be displaced by a clear legislative intent that a provision is to apply retrospectively. Section 5 of the Act, which states that the new restrictions on credit for pre-sentence custody in s. 3 of the Act apply "only to persons charged after" the Act comes into force, shows a clear legislative intent that those restrictions are meant to apply retrospectively to the sentencing of persons who committed an offence before the Act came into force but were charged after.

Cases referred to

R. v. Serdyuk, [2012] A.J. No. 673, 2012 ABCA 205, 533 A.R. 199, [2012] 12 W.W.R. 696, 68 Alta. L.R. (5th) 152, 102 W.C.B. (2d) 471, not folld

Other cases referred to

Canada (Information Commissioner) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306, [2011] S.C.J. No. 25, 2011 SCC 25, 416 N.R. 105, 2011EXP-1524, J.E. 2011-834, 331 D.L.R. (4th) 513, 201 A.C.W.S. (3d) 425; R. v. Dineley, [2012] S.C.J. No. 58, 2012 SCC 58, 297 O.A.C. 50, 2012EXP-3885, J.E. 2012-2080, 436 N.R. 59, 34 M.V.R. (6th) 1, 96 C.R. (6th) 359, 290 C.C.C. (3d) 190, 104 W.C.B. (2d) 439; R. v. I. (D.A.), [2012] 1 S.C.R. 149, [2012] S.C.J. No. 5, 2012 SCC 5, 280 C.C.C. (3d) 127, 99 W.C.B. (2d) 328, 427 N.R. 4, 2012EXP-596, J.E. 2012-326, 345 D.L.R. (4th) 385, 89 C.R. (6th) 221, 288 O.A.C. 1; R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 2003 SCC 46, 230 D.L.R. (4th) 296, 308 N.R. 333, [2004] 2 W.W.R. 393, J.E. 2003-1825, 186 B.C.A.C. 161, 19 B.C.L.R. (4th) 243, 177 C.C.C. (3d) 97, 13 C.R. (6th) 205, 58 W.C.B. (2d) 154; R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 2000 SCC 18, 184 D.L.R. (4th) 385, 252 N.R. 332, J.E. 2000-832, 134 B.C.A.C. 236, 143 C.C.C. (3d) 129, 32 C.R. (5th) 58, REJB 2000-17652, 45 W.C.B. (2d) 492 [page76 ]

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 11(i)

Truth in Sentencing Act, S.C. 2009, c. 29, ss. 3, (3), (3.1), 5

APPEAL by the accused from the sentence imposed on February 18, 2011 by O'Donnell J. of the Ontario Court of Justice.

Diana Lumba, for appellant.

Mabel Lai, for respondent.

The judgment of the court was delivered by

LASKIN J.A.: —

A. Introduction

[1] The only issue on this sentence appeal is whether the Truth in Sentencing Act, S.C. 2009, c. 29 (the "Act") governs the credit to which the appellant is entitled for his pre-sentence custody. Under the Act, an offender cannot receive more than one-and-a-half days' credit for each day spent in pre-sentence custody.

[2] The appellant committed the offences for which he was convicted before the Act came into force, but he was charged with the offences after the Act came into force. Section 5 of the Act says that the limits on credit for pre-sentence custody apply "only to persons charged after" the Act comes into force (emphasis added).

[3] The trial judge held that the Act applied, and gave the appellant the maximum credit the Act permits: one-and-a-half days' credit for each day spent in pre-sentence custody. The appellant says that the Act does not apply to offences committed before it came into effect. Therefore, he is entitled to two days' or even three days' credit for every day he spent in pre-sentence custody. The Crown accepts that if the Act does not apply, the appellant is entitled to two-for-one credit.

B. Background

(1) The offences and the sentence

[4] The appellant, now 26 years old, was charged with break and enter and numerous firearms-related offences. He pleaded guilty. The trial judge sentenced him to ten years' imprisonment, less 17 months' credit for the 348 days he spent in pre-sentence custody (effectively, 1.5-for-1 credit). [page77 ]

(2) The Truth in Sentencing Act

[5] Before Parliament enacted the Truth in Sentencing Act, courts typically gave offenders two-for-one and occasionally even three-for-one credit for time spent in pre-sentence custody. This enhanced credit reflected the harshness of that period of detention because of the absence of remedial programs and the inapplicability of remission provisions to that period: R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 2000 SCC 18, at para. 28.

[6] The Truth in Sentencing Act took away the court's discretion to give two-for-one or even greater credit for pre-sentence custody. Instead, the Act stipulates in s. 3(3) that though the court may take into account any time spent in custody, "the court shall limit any credit for that time to a maximum of one day for each day spent in custody".

[7] However, the Act does provide in s. 3(3.1) that, despite s. 3(3), the court may give enhanced credit to a maximum of one-and-a-half days for each day spent in custody, "if the circumstances justify it".

[8] In this case, the appellant was beaten while in custody. The trial judge held that the appellant's beating "coloured the balance of his time in custody and the quality of that time and his sense of security during that time in custody". That circumstance "standing alone" justified the maximum credit permitted under s. 3(3.1): one-and-a-half days for each day the appellant spent in pre-sentence custody.

[9] On this appeal, the critical provision of the Act is s. 5. Section 5 states that the limits on credit for pre-sentence custody in the subsections enacted by s. 3 "apply only to persons charged after the day on which those subsections come into force". Those subsections came into force on February 22, 2010. As is evident from the chronology to which I now turn, the appellant was charged after that date.

(3) Relevant chronology

[10] The relevant dates and events are as follows:

February 20-21, 2010:

The appellant commits the

offences.

February 22, 2010:

Section 3 of the Truth in Sentencing Act comes into force.

March 11 or 12, 2010:

The appellant is arrested and charged with the offences. [page78 ]

November 10, 2010:

The appellant pleads guilty.

February 18, 2011:

The appellant is sentenced.

C. Analysis

[11] This appeal is not about the wisdom of the Truth in Sentencing Act. Indeed, it is not even about the constitutionality of the Act: the appellant has not argued on appeal, and did not argue at trial, that s. 5 infringes s. 11(i) of the Canadian Charter of Rights and Freedoms. Section 11(i) provides that if the punishment for an offence has been varied between the time of commission of the offence and the time of sentencing, the person found guilty of the offence "has the right . . . to the benefit of the lesser punishment". That section plays no part in this appeal.

[12] Therefore, this appeal turns solely on a question of statutory interpretation. The question is whether the Act applies to an offender's sentence, where the offender committed the offences for which he was sentenced before the Act came into force, but was charged with those offences after the Act came into force. I would answer that question yes -- the Act does apply.

[13] Our courts have developed principles to determine when new legislation applies. One cardinal principle is that a person convicted of a criminal offence should ordinarily be sentenced under the provisions in place when the offence was committed: R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 2003 SCC 46, at para. 41. This principle is but an example of the broader principle that legislation affecting substantive rights should be presumed not to apply retrospectively: R. v. Dineley, [2012] S.C.J. No. 58, 2012 SCC 58, at para. 10. The appellant relies on this presumption in arguing that s. 3 of the Act, which affects his substantive right to greater than 1.5-for-1 credit, should not be applied to his sentence for offences he committed before the Act came into force.

[14] However, the presumption against retrospectivity can be displaced by a clear legislative intent that a provision is to apply retrospectively. Where the statutory language carries that clear meaning, the presumption does not apply. In her majority reasons in R. v. Dineley, at para. 10, Deschamps J. discussed the presumption and how it might be rebutted:

There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which [page79 ]legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively.

(Citations omitted; emphasis added)

[15] Does s. 5 of the Truth in Sentencing Act show a clear legislative intent that the new restrictions on credit for pre-sentence custody in s. 3 are meant to apply restrospectively, to the sentencing of persons who committed an offence before the Act came into force but were charged after?

[16] The Alberta Court of Appeal recently considered this same question in R. v. Serdyuk, [2012] A.J. No. 673, 2012 ABCA 205. The court concluded, at para. 28, that Parliament did not intend the Act to apply to these offenders:

In our view, it is clear that Parliament intended by s. 5 of the Truth in Sentencing Act to put beyond question that only persons who committed their crimes and were charged for them after the amended Code provisions came into force would be affected by the amendments. Neither official language version mentions the date of offence, but, as noted below, the absence of such reference is not an obvious exclusion.

(Emphasis in original)

[17] I disagree. Section 5 shows a clear parliamentary intent that the new provisions for credit for pre-sentence custody apply to persons, such as the appellant, who committed an offence before February 22, 2010, but were charged with the offence after that date. I rest my submission on two grounds.

[18] First, the starting rule of statutory interpretation is to examine the plain words Parliament used: R. v. I. (D.A.), [2012] 1 S.C.R. 149, [2012] S.C.J. No. 5, 2012 SCC 5, at para. 26. If those words have a clear meaning and do not give rise to any ambiguity -- that is, they are not reasonably capable of more than one meaning -- the court should give effect to those words.

[19] The words of s. 5 are clear and admit of only one meaning. The new provisions apply to the sentencing of all persons charged after the Act came into force, no matter when the offences were committed. I agree with the respondent that to give effect to the appellant's position, one would have to read into s. 5 the following underlined words:

[The new provisions], as enacted by s. 3, apply only to persons charged with an offence committed after the day on which those [provisions] come into force. [page80 ]

[20] Parliament has to be taken to know the difference between the date an offence takes place and the date a person is charged with the offence. To read in those underlined words would change Parliament's intent on the applicability of the Truth in Sentencing Act. The trial judge's interpretation of the Act is therefore consistent with the plain words of the statute.

[21] Second, the words of a statute take their colour and their meaning from their context and the Act's purpose: Canada (Information Commissioner) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306, [2011] S.C.J. No. 25, 2011 SCC 25, at para. 27.

[22] One obvious purpose of the Truth in Sentencing Act is to reduce the credit available for the population of offenders detained before sentencing. The triggering date for detention before sentencing is the date the person is charged and held pending a bail hearing. The date a person commits an offence is of no relevance to this purpose of the Truth in Sentencing Act. Thus, the appellant's interpretation of s. 5 is at odds with the statute's purpose. The trial judge's interpretation that the Act applies to the appellant because he was charged after it came into force is consistent with the statute's purpose.

[23] For these reasons, I agree with the trial judge and would dismiss the appeal.

D. Conclusion

[24] The Truth in Sentencing Act governs the credit to be given to the appellant for his pre-sentence custody. I would grant leave to appeal sentence, but would dismiss the appeal.

Appeal dismissed.

End of Document